People v. Graham

Opinion

WHELAN, Acting P. J.

Rodney Richard Graham, defendant, has appealed from a judgment imposing a prison sentence after a jury had found him guilty of voluntary manslaughter and the trial judge had found he was armed with a firearm at the time of his commission of the offense within the meaning of Penal Code section 12022.

The contentions on appeal are concerned solely with the latter finding by the trial judge.

Defendant was charged by an indictment filed March 14, 1973, with the murder of Charles Jackson on March 3, 1973. The indictment alleged further defendant used a firearm in the commission of the offense in violation of Penal Code section 12022.5.

The evidence established Jackson died as the result of a gunshot wound inflicted by defendant with a firearm defendant brought from his bedroom. The shooting occurred in defendant’s home in the presence of a dozen or more persons present at a party.

On the day set for trial, before the jury was selected counsel for defendant stated to the court: “[M]y client wishes to waive jury on the 12022.5 armed allegation. In other words, the Court would have to make a finding, presuming, or

in the instance there was an adverse finding in this case on any degree of homicide, the Court would have to make a finding that the defendant was in fact armed.

Now, I have explained to Mr. Graham that this adds or could add a five-year mandatory minimum to whatever sentence the Court imposes. I have also explained to him that under the recent Dorsey case the Court has the authority and the discretion to strike the allegation, even though there is a finding that the defendant was armed, it is entirely discretionary with the trial judge. He understands by waiving

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his right to a jury trial on that issue, he is conceding the fact he was armed at the time of the shooting and

he understands that if there is any adverse finding of guilt on any degree of homicide, the Court would necessarily have to find that he was armed.”

(Italics added.)